Following the British decision on Monday to, among other things, expel four Russian diplomats because the Russian Government refused to extradite Andrei K. Lugovoi for the murder of Alexander V. Litvinenko, all expected a quick Russian rejoinder. Instead, the Russians have decided to wait to retaliate so that they can study the details of the British actions, which are not yet available. For those who do not wish to see this episode exacerbate the tense relations that already obtain between Russia and the West, this is a good sign that both sides intend to calibrate their moves in order to sequester this affair from the many other difficult issues currently on the diplomatic agenda (such as the CFE Treaty).
A number of interesting questions arise out of these events: For one, was the British reaction to the Russian refusal to extradite appropriate as a matter of policy? The issue is one of policy and not law since (as previously noted) Russia was under no international legal obligation to extradite Lugovoi. Indeed, the relevant treaty expressly permits Russia to do precisely what it did: deny extradition because the fugitive was a Russian national. And the Russian Constitution, in line with Russia's international obligations, forbids the Russian Government's extradition of Russian nationals. Now certainly there is a strong law enforcement interest in the extradition of fugitives, regardless of their nationality, especially in cases of serious crimes, and that is much of what's animating the British here. But the British reaction is counterproductive in at least three ways. First, it undercuts arguments frequently made that the Russians should pay greater adherence to the rule of law. To put it differently (as the Russians have), it is the height of hypocrisy to criticize Russia for abiding by its laws in this case. Second, the British measures undercut other legitimate bases for not extraditing fugitives. What's the difference between the U.K.'s refusal to extradite Boris Berezovsky (who, by the way, was apparently the subject of a recent Lugovoi-like assassination plot) and the Russian refusal to extradite Lugovoi if all one is concerned about is prosecuting a serious crime? Third, if a requesting State is going to take measures against a requested State even when the latter State has acted in accordance with its treaty obligations, then why should a State bother negotiating extradition treaties at all? In other words, don't the British actions make it less likely that States will enter into binding international agreements to cooperate in law enforcement matters?
Another question is whether non-extradition of nationals is declining. At Opinio Juris, Peter Spiro interestingly speculates that "perhaps the affair evidences slippage" in the "longstanding practice of countries not extraditing their own nationals." Peter cites the Convention of 27 September 1996 relating to extradition between the Member States of the European Union (not in force) and his "sense . . . that fewer bilateral extradition pacts allow parties to refuse the extradition of nationals." This is, of course, an empirical question. Without doing a full survey, the most that can be said is that over the past two to three decades there has been a general shift away from the relevance of nationality to extradition. That shift, however, may very well be due to a limited (though important) set of countries. For some years, for example, the United States has had a strong policy against non-extradition of nationals. And the European Union, in its European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, essentially eliminates the nationality of the fugitive as a ground for the denial of extradition between EU Member States. (New EU Member States, like Bulgaria and Romania, have had to amend their constitutions accordingly.) That said, recent multilateral law enforcement instruments (see, for example, the United Nations Convention Against Corruption, art. 44(11)) allow countries to decline to extradite their own nationals, provided they agree to try them for the crimes alleged. And though the United States has generally adhered to its policy (see, for example, the extradition treaties or protocols with Belize (signed in 2000), Estonia (signed in 2006), Israel (signed in 2005), Latvia (signed in 2005), Lithuania (signed in 2001), Peru (signed in 2001), and the United Kingdom (signed in 2003)), it has sometimes not been fully successful (see, for example, the extradition treaty with Malta (signed in 2006), which requires the extradition of nationals for only certain enumerated crimes) or has had to guarantee that the convicted fugitive could serve his/her sentence in his/her State of nationality (see, for example, the protocol amending the extradition treaty with Israel). Peter is certainly right that the U.K. and Russia have differing views (or values) regarding the extradition of nationals and that these differences in perspective are behind the Lugovoi extradition spat, at least in part. Interestingly, however, it appears that even in this context neither the U.K. nor any other country has explicitly stated that a rule permitting the non-extradition of nationals is outdated. Indeed, it appears that the United States hasn't even gone so far as to criticize the Russian non-extradition decision (describing it as a "matter between the UK and Russia"); instead, the United States has only called for "cooperation" between the two countries. That's no surprise, though, as Russia and the United States do not have a bilateral extradition treaty, and so, under U.S. law, the United States cannot extradite anyone to Russia, even an alleged murderer like Andrei Lugovoi.